1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL MISC.
APPEAL NO.4531/2011 Smt.
Indra Devi & ORS.versus Anand Prakash Malviya & Anr.
Date of Judgment :: 03.10.2013 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.M.R.Patel, for the appellants.
Mr.D.K.Bhootra, for the respondent-Insurance Company.
---- REPORTABLE BY THE COURT: This appeal is directed against the judgment and award dated 16.7.2011 passed by the Motor Accident Claims Tribunal, Pali ('the Tribunal').whereby the application for compensation ('the application') filed by the appellants under Section 163A of the Motor Vehicles Act, 1988 ('the Act') has been rejected.
The brief facts of the case may be noticed thus : an application under Section 163A of the Act was filed by the appellants, who are wife, daughter and mother of one Mohan Ram @ Mohan Lal seeking compensation to the tune of Rs.4,68,300/- with the averments that Mohan Ram was travelling in Bus No.RJ-07-P-4245 on 30.1.2007 from Jodhpur to Rohit when on the National Highway No.65, the bus collided with Truck No.HR-38-G-4311, which resulted in death of Mohan Ram, a passenger in the bus.
It was claimed that as the death occurred 2 due to accident arising out of the use of the bus, the claimants were entitled to seek compensation as per Second Schedule to the Act from the owner and insurer of the bus jointly and severally.
It was claimed that the deceased was aged 23 years and was working as Munim and Salesman with M/S.Kundanlal Pukhraj, Tripoliya Bazar, Jodhpur and used to get salary of Rs.3,300/- per month and therefore, the claimants were entitled to a sum of Rs.4,48,800/- towards loss of income, Rs.2,000/- as funeral expenses, Rs.15,000/- for loss of consortium / love and affection and Rs.2,500/- towards loss of clothes, watch etc.i.e.in all Rs.4,68,300/-.
A reply to the application was filed by owner of the bus and it was denied that the accident occurred on account of any mistake on part of the owner.
The income and age of the deceased were disputed.
It was indicated that regarding the accident, FIR was lodged by the driver of the bus against the truck driver and after investigation, challan was filed against Darshan Singh, the driver of the truck and as there was no negligence on part of the driver of the bus, the claimants are not entitled to claim any compensation.
On behalf of the Insurance Company also, a reply was filed, whereby the facts of accident and that the applicants were legal representatives of the deceased were denied.
It was claimed that the driver of the bus was not in possession of effective and valid driving licence and bus was being operated without valid and effective fitness certificate and permit and consequently, for violation of the policy conditions, the Insurance 3 Company was not liable.
It was claimed that the owner, driver and insurer of the truck were necessary parties for the just decision of the case.
Rest of the averments made in the claim petition were also denied.
Based on the pleadings of the parties, the Tribunal framed the following issues :- “1.
आय व हन बस सखय आर.ज.-07-प -4245 क च लक यगलककश र द न क 30.01.2007 क 09.30 प .एम.
पर र ष य र जम ग स.
65 प ल -ज धपर आम र स" पर ज धपर स प ल क# "रफ ब ई प स क प स व हन बस सखय आर.ज.-07-प -4245 क उसक सव म अप र* सखय एक आन पक श क ननय जन,ननयतण म.
ह कर उसक ल भ र चल कर व हन टक सखय एच.आर.38/ज -4311 स टकर य ज न स रटन रदट" हई, जजसम.
म"4 क म हनर म उफ म हनल ल क च ट.
क रर" ह कर उनस उसक# मत 4 य हई?.
-प र*गण- 2.
आय अप र* स.
ब म कपन अपन जव ब क# प रममक आपत9य: एव अन"ररक करन: क आध र पर पन"कर प न< क इस प रन पत म.
प र*गण क पन"कर अ यग क अपन नयतव स मक ह न य गय ह?.?.
-अप र* स.
- 3.
आय प र*गण पन"कर प न< ह" पस"" इस प रन पत म.
च ह गई पन"कर र मश य अनय क ई नय यसग" पन"कर र मश अप र*गण स प न< क अधधक र ह?., यद हB " ककस क र?.
-प र*गण- 4.अन" ष?.”.
In support of the application, AW-1 Smt.
Nainu Devi was examined and documents Exhibit-1 to 17 were exhibited.
No evidence was led by the non-claimants.
It would be relevant to notice that the Insurance company filed an application under Order I, Rule 10 CPC for impleading the driver, owner and insurer of the Truck No.HR-38-G-1411, which application was rejected by the Tribunal on the principle that the applicants are dominus litus and they cannot be compelled to implead any one as party against whom they do not seek any relief.
The Tribunal on consideration of the evidence went on to hold that from the evidence it was not proved that the accident 4 happened on account of the driver of the bus and in fact, from the documentary evidence, it was proved that the truck was being driven rashly and negligently, which resulted in the accident, however, the claimants did not implead the driver, owner and insurance company as party; there was no dispute between the parties that Mohan Lal died on account of the injuries suffered by him on account of the said accident and concluded that the accident occurred on account of rash and negligent driving by the truck driver, which resulted in the death of Mohan Ram.
The Tribunal further held that the claimants were entitled to a compensation of Rs.4,15,000/-, however, based on its finding that the accident occurred on account of rash and negligent driving of the truck driver, whose driver, owner and insurer were not impleaded as party, held that the owner and insurer of a innocent vehicle cannot be held liable for payment of compensation and consequently rejected the application as noticed above.
It is submitted by learned counsel for the appellants that the Tribunal fell in error in rejecting the application on account of its finding of negligence of the truck driver and non-impleadment of the driver, owner and insurer of the said truck.
It was submitted that as the application was filed under Section 163A of the Act, the issue of negligence of the vehicle and impleadment of parties was wholly irrelevant and consequently the judgment deserves to be set-aside and the application deserves to be allowed.
5 Replying to the contentions raised by learned counsel for the appellants, learned counsel appearing for the Insurance Company submitted that once a finding of negligence of the truck driver has been recorded by the Tribunal, no award could have been passed against the owner and the insurer of the bus and as such, the Tribunal was justified in rejecting the application.
I have considered the rival submission.
Section 163A of the Act reads thus : “163A.
Special provisions as to payment of compensation on structured formula basis.
- (1).Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.- For the purposes of this sub-section, “permanent disability”.
shall have the same meaning and extent as in the Workmen's Compensation Act, 1923.
(2).In any claim for compensation under sub-section (1).the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3).The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.”
.
A bare reading of the said provision would reveal that in a case where death or permanent disablement occurs due to accident arising out of the use of motor vehicle, the compensation, as indicated in the Second Schedule, is payable to the legal heirs or the victim by the owner of the motor vehicle or the authorised insurer and the claimant is not required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles 6 concerned or of any other person.
The Hon'ble Supreme Court in Deepal Girishbhai Soni and others v.
United India Insurance Co.LTD.: 2004 ACJ934held that Section 163A was introduced in the Act by way of a social security scheme and it is a code by itself.
The Hon'ble Supreme Court in National Insurance Company Limited v.
Sinitha & ORS.: (2012) 2 SCC356 while considering the issue as to whether in a claim raised under Section 163A of the Act neglect, wrongful act and default can be established by the owner or the Insurance Company to defeat a claim under Section 163A of the Act held as under:- “31.
At the instant juncture it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163-A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988.
Stated in other words, none of the provisions of the Motor Vehicles Act which is in conflict with Section 163- A of the Act will negate the mandate contained therein (in Section 163-A of the Act).Therefore, no matter what, Section 163-A of the Act shall stand on its own, without being diluted by any provision.
Furthermore, in the couRs.of our determination including the inferences and conclusions drawn by us from the judgment of this Court in Oriental Insurance Co.Ltd.v.Hansrajbhai V.
Kodala as also the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view that there is no basis for inferring that Section 163-A of the Act is founded under the “no-fault”.
liability principle.
32.
Additionally, we have concluded hereinabove that on the conjoint reading of Sections 140 and 163-A, the legislative intent is clear, namely, that a claim for compensation raised under Section 163-A of the Act need not be based on pleadings or proof at the hands of the claimants showing absence of “wrongful act”., being “neglect”.
or “default”.But that is not sufficient to determine that the provision falls under the “fault”.
liability principle.
To decide whether a provision is governed by the “fault”.
liability principle the conveRs.has also to be established i.e.whether a claim raised thereunder can be defeated by the party concerned (the owner or the insurance company) by pleading and proving “wrongful act”., “neglect”.
or “default”.33.
From the preceding paras (commencing from para 22).we have no hesitation in concluding that it is open to the owner or the insurance company, as the case may be, to defeat a claim under Section 163-A of the Act by pleading and establishing through cogent evidence a “fault”.
ground (“wrongful act”.
or “neglect”.
or “default”.).It is, therefore, doubtless that Section 163-A7of the Act is founded under the “fault”.
liability principle.
To this effect we accept the contention advanced at the hands of the learned counsel for the petitioner.”
.
From the above law laid down by the Hon'ble Supreme Court, it is apparent that in a claim under Section 163A of the Act, no pleading or proof on part of the claimants showing absence of wrongful act being neglect or default is required, but the claim raised under Section 163A can be defeated by the owner or Insurance Company by pleading and proving wrongful act, neglect or default on part of the claimant/deceased.
In the present case, the Tribunal though framed issues in consonance with the mandate of Section 163A of the Act i.e.accident arising out of use of the vehicle and the insurer's plea regarding violation of policy conditions by the owner and rightly no issue was framed regarding negligence, which is not required to be proved under sub-section (2) of Section 163A of the Act.
Once, there was no issue relating to negligence of the vehicles involved, the Tribunal was not required to record a finding on the alleged negligence of the truck driver and/or innocence of the bus driver and consequently, the finding on a aspect which did not arise / could not be subject matter under Section 163A (2) of the Act cannot form basis for deciding an application.
Therefore, the finding of alleged negligence of the truck driver being dehors the requirement of Section 163A of the Act is set- aside.
Section 163A (2) of the Act envisages a situation where more than one vehicle is involved in the accident and it stipulates that even in such cases, the question of negligence need not be 8 considered by the Tribunal, in view thereof it will be against the spirit of Section 163A that a finding is recorded on the question of negligence so as to resolve any dispute that may arise inter-se between the vehicles involved.
Section 163A totally prohibits a recording of finding on negligence so far as a claim preferred by the injured or the legal representatives of a deceased is concerned.
Coming to the question of requirement to implead the driver, owner and insurer of the truck and they being necessary parties to the said application on account of involvement of more than one vehicle is concerned.
There is nothing in Section 163A to show that when two vehicles are involved, the claim must be staked against the owner and insurer of both the vehicles as in the case of Section 140 of the Act.
The option is of the claimants to claim against the owner / insurer of either or both the vehicles.
A claim under Section 163A lies only against the owner of the vehicle and the authorised insurer and it does not lie against the driver unless the driver is the owner also.
The option of the claimants is not in any way restricted by language of Section 163A of the Act.
In that view of the matter, the claim in the present case against the owner and insurer of the vehicle, in which the deceased was travelling without impleading the owner and insurer of the truck involved in the said accident, is perfectly justified and cannot be faulted.
The finding of the Tribunal for rejecting the claim of the claimants based on absence of driver, owner and insurer of the truck being against the requirements of 9 Section 163A of the Act is also set-aside.
A Division Bench of Kerla High Court in United India Insurance Company Limited v.
Ratheesh : 2012 ACJ2206 while dealing with requirement of such impleadment concluded that notwithstanding the different semantics employed by the legislature in Sections 140 and 163A of the Act, in a claim under Section 163A, the claimant has the unfettered option / choice to stake his claim against either or both (any or all) the owners / insurers of the vehicles involved in the accident.
Consequently, both the findings recorded by the Tribunal i.e.negligence of the truck involved and necessity to implead the driver, owner and insurer of the said truck in a application under Section 163A of the Act being wholly contrary to the scheme of the said provision are quashed and set-aside.
Even in view of the law laid down by the Hon'ble Supreme Court in the case of Sinitha (supra).the Insurance Company failed to lead any evidence so as to escape its liability on the grounds taken in the reply, therefore, the issue No.2 which relates to the liability of the Insurance Company is also decided against it.
The Tribunal has calculated the compensation at Rs.4,15,000/- which is just and reasonable in the facts and circumstances of the case.
The claimants would also be entitled to interest @ 6% p.a.from the date of filing the application i.e.13.7.2007 till the date of payment.
Looking to the evidence led by Smt.
Nainu Devi, mother of the deceased, inter-alia pointing out that wife of the deceased 10 has remarried in the year 2011 and the minor child was under her guardianship, who was aged about one month at the time of the accident.
It is directed that out of a total compensation of Rs.4,15,000/- while Smt.
Indra Devi, wife would be entitled to a sum of Rs.75,000/- alongwith interest, Smt.
Nainu Devi, mother would be entitled to a sum of Rs.1 lac alongwith interest and rest of the sum i.e.Rs.2,40,000/- shall be placed in Fixed Deposit in the name of Miss Uma D/o Mohan Ram @ Mohan Lal, which would remain in a Fixed Deposit till said Miss Uma attains the age of majority i.e.18 yeaRs.The amount of interest on the said Rs.2,40,000/- would be paid in cash to said Miss Uma.
Consequently, this appeal is allowed.
The judgment and award dated 16.7.2011 passed by the Tribunal is set – aside.
The application filed by the claimants is allowed against the respondents, who would be jointly and severally liable for payment of compensation of Rs.4,15,000/- alongwith interest @ 6% p.a.from the date of application i.e.13.7.2007 and the claimants would be entitled to compensation in the manner as indicated hereinabove.
No costs.
(ARUN BHANSALI).J.
rm/